October 2012

Workers' WH&S obligations are not to be ignored

This bulletin is based on a presentation given by James Mattson to the Sydney Safety Conference on 23 October 2012.

Safety in the workplace is the responsibility of everyone.  A business is only as good as its workers.  Both of those sayings have some resonance under work health and safety laws.

Too often the discussion about safety laws is focussed on the duty of the business to ensure, so far as is reasonably practicable, the health and safety of workers and other persons at the workplace.  Much attention is devoted to examining the duty of due diligence imposed on officers.  Focus on these two matters is warranted.  The business and its officers need to demonstrate and lead on safety matters

However, workers also have a very important role to play in ensuring their own safety and that of others in the workplace. 

Worker obligations contained in legislation

Section 28 of the Work Health and Safety Act 2011 contains four important obligations on workers, namely:

  1.  to take reasonable care for their own safety;

  2.  to take reasonable care that their acts or omissions do not adversely affect the safety of others;

  3.  to comply with any reasonable instruction given by the business related to safety; and

  4.  to co-operate with any reasonable safety policy or procedure.

A worker’s failure to comply with these duties can result in maximum penalties of $300,000 or 5 years jail for a category one offence or $50,000 for a category three offence.

Safety requires action

In a case of extreme facts, but general application, the decision of Inspector Estreich v Zaccardelli [2012] NSWIRComm 47 demonstrates the importance of employees acting in the interests of safety.

The Zaccardelli case concerned the ill conceived idea to "egg" a co-worker before his wedding.  In the excitement of the prank, the co-worker was tied up against some plant and then egged.  Soon after petrol was poured and lit around him resulting in serious injury.

A number of workers were prosecuted.  The instigator was prosecuted twice, for criminal assault and then a breach of his safety duties.  The bystander, who did not agree with the prank but stood by and watched, was also prosecuted for breach of his duty to take reasonable care.

In that regard, the Industrial Court said:

“An employee is not entitled to stand by and do nothing if it is reasonably foreseeable that what is occurring may place the health and safety of another employee at risk.”

A worker cannot standby and ignore issues of safety - it could be a criminal offence.  It could also have other consequences.

Safety breaches can result in dismissal

The Fair Work Regulation 2009 prescribes serious misconduct as including conduct that causes a serious and imminent risk to health and safety.

It is uncontentious that not all safety breaches justify dismissal. 

Employers can justify dismissal for serious safety breaches, if they adhered to four simple tips - educate, train, reinforce often and warn sternly.  This was demonstrated in Joss v Boral Bricks Pty Ltd [2012] FWA 8203, which was reported on 11 October 2012.

Boral had a piece of plant and machinery called the Dehacker.  It was 75m long and at any given time carried suspended loads of about 6 tonnes.  Boral had an isolation policy (Lock Out Tag Out or "LOTO") to prevent employees accessing live machinery other than when it was disabled, by placing their personal padlock or tag on the isolation switch.

Mr Joss had over twenty years’ service with Boral.  He had received ample training on LOTO and it was discussed regularly at team meetings.  Mr Joss was recently counselled about not adhering to the LOTO policy, including being told that another breach could lead to dismissal.

Mr Joss again ignored the LOTO policy.  He accessed and squeezed into the Dehacker whilst it operated, rather than turn it off and isolate it.  When quizzed about his failures, Mr Joss said he forgot the policy, then later said "I'm helping the company" because LOTO slowed down output.  

Fair Work Australia, in the context of such a serious safety breach, had no hesitation finding the dismissal was valid and fair.  Where a valid reason for dismissal exists for a serious safety breach, and a fair process is followed before dismissal, only significant mitigating factors would justify a dismissal being found to be unfair.

In the case of Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166, it was found that mere length of service with the company is not enough of a mitigating factor.

Conclusion

Workers are an integral part of ensuring safety in the workplace.  Workers, including senior managers and supervisors who are not "officers", should have special regard to the duty to take reasonable care, as it covers failures to act.

Businesses should be encouraged to develop safety systems and processes and educate and train employees on those matters.  By reinforcing those systems often and warning sternly for any non-compliances, an employer will be well placed to take decisive action if needed.

Author: James Mattson

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